# C_2019246EN.01000401.xml

| 22.7.2019 | EN | Official Journal of the European Union | C 246/4 |
| --- | --- | --- | --- |

22.7.2019

EN

Official Journal of the European Union

C 246/4

---

Request for a preliminary ruling from the Juzgado de Primera Instancia No 17 de Palma de Mallorca (Spain) lodged on 14 March 2019 — CY v Caixabank, S.A.

(Case C-224/19)

(2019/C 246/05)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 17 de Palma de Mallorca

Parties to the main proceedings

Applicant: CY

Defendant: Caixabank, S.A.

Questions referred

| 1. | The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, (1) a clause declared invalid on grounds of unfairness which attributes to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage
  may be varied as regards its restitutory effects after it has been declared invalid on grounds of unfairness. |
| --- | --- |

1.

The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, (1) a clause declared invalid on grounds of unfairness which attributes to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage
  may be varied as regards its restitutory effects after it has been declared invalid on grounds of unfairness.

| 2. | The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, national case-law establishing that, after the declaration of invalidity of a clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage,
  notarial and management expenses must be borne equally by the lender and borrower
  may be regarded as variation by the courts of the declaration of invalidity of an unfair term and therefore contrary to the principle set out in Article 6(1) of Directive 93/13 that unfair terms are not binding. |
| --- | --- |

2.

The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, national case-law establishing that, after the declaration of invalidity of a clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage,
  notarial and management expenses must be borne equally by the lender and borrower
  may be regarded as variation by the courts of the declaration of invalidity of an unfair term and therefore contrary to the principle set out in Article 6(1) of Directive 93/13 that unfair terms are not binding.

| 3. | The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, national case-law establishing that, after the declaration of invalidity of the clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage, the borrower must also be required to pay the
  costs involved in valuing the property and the tax on the establishment of the mortgage deriving from formalisation of the loan
  infringes the principle that consumers are not bound by terms found to be unfair, and whether it is contrary to Article 3(2) of Directive 93/13 to
  place on the borrower the burden of proving that he was not permitted to provide his own valuation of the property. |
| --- | --- |

3.

The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, national case-law establishing that, after the declaration of invalidity of the clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage, the borrower must also be required to pay the
  costs involved in valuing the property and the tax on the establishment of the mortgage deriving from formalisation of the loan
  infringes the principle that consumers are not bound by terms found to be unfair, and whether it is contrary to Article 3(2) of Directive 93/13 to
  place on the borrower the burden of proving that he was not permitted to provide his own valuation of the property.

| 4. | The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, it is contrary [to that directive] for national case-law, after the declaration of invalidity of a clause attributing to the borrower all the creation, novation or cancellation costs of a loan agreement secured by a mortgage, to establish that that clause can continue to have effects for the borrower where it makes modifying novations or cancels the mortgage,
  in that the borrower must continue to pay the costs resulting from such modification or cancellation of the mortgage
  , and whether the attribution of those costs to the borrower entails an infringement of the principle that consumers are not bound by terms found to be unfair. |
| --- | --- |

4.

The Court of Justice is asked whether, in the light of Article 6(1) of Directive 93/13, it is contrary [to that directive] for national case-law, after the declaration of invalidity of a clause attributing to the borrower all the creation, novation or cancellation costs of a loan agreement secured by a mortgage, to establish that that clause can continue to have effects for the borrower where it makes modifying novations or cancels the mortgage,
  in that the borrower must continue to pay the costs resulting from such modification or cancellation of the mortgage
  , and whether the attribution of those costs to the borrower entails an infringement of the principle that consumers are not bound by terms found to be unfair.

| 5. | The Court of Justice is asked whether, in the light of Article 6(1) in conjunction with Article 7(1) of Directive 93/13, national case-law which partially excludes the restitutory effect of the declaration of invalidity on grounds of unfairness of a clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage is incompatible with the deterrent effect on the seller or supplier provided for in Article 7(1) of Directive 93/13. |
| --- | --- |

5.

The Court of Justice is asked whether, in the light of Article 6(1) in conjunction with Article 7(1) of Directive 93/13, national case-law which partially excludes the restitutory effect of the declaration of invalidity on grounds of unfairness of a clause attributing to the borrower all the formalisation, novation or cancellation costs of a loan agreement secured by a mortgage is incompatible with the deterrent effect on the seller or supplier provided for in Article 7(1) of Directive 93/13.

| 6. | The Court of Justice is asked whether, in the light of the principle established in the case-law of the Court of Justice that clauses declared invalid cannot be varied, and in the light of the principle that unfair terms are not binding set out in Article 6 of the directive, national case-law which varies the restitutory effects after the declaration of invalidity of a clause attributing to the borrower all the formalisation, novation or cancellation costs may be regarded as an infringement, based on the interests of the borrower. |
| --- | --- |

6.

The Court of Justice is asked whether, in the light of the principle established in the case-law of the Court of Justice that clauses declared invalid cannot be varied, and in the light of the principle that unfair terms are not binding set out in Article 6 of the directive, national case-law which varies the restitutory effects after the declaration of invalidity of a clause attributing to the borrower all the formalisation, novation or cancellation costs may be regarded as an infringement, based on the interests of the borrower.

| 7. | The Court of Justice is asked whether, in the light of the Article 3(1) and (2) of Directive 93/13, national case-law establishing that an
  ‘arrangement fee’ clause automatically satisfies the transparency test
  may infringe the principle of the reversal of the burden of proof established in Article 3(2) of the directive, since the seller or supplier is not required to prove that it provided information in advance or that the clause was individually negotiated. |
| --- | --- |

7.

The Court of Justice is asked whether, in the light of the Article 3(1) and (2) of Directive 93/13, national case-law establishing that an
  ‘arrangement fee’ clause automatically satisfies the transparency test
  may infringe the principle of the reversal of the burden of proof established in Article 3(2) of the directive, since the seller or supplier is not required to prove that it provided information in advance or that the clause was individually negotiated.

| 8. | The Court of Justice is asked whether it is contrary to Article 3 of Directive 93/13 and the case-law of the Court of Justice for a consumer to be regarded under national case-law as being automatically aware that it is normal practice for financial institutions to charge an arrangement fee, and, accordingly, for a lender not to be required to provide any evidence to establish that the clause was individually negotiated, or whether, on the contrary, and in any event, a lender must establish that that clause was individually negotiated. |
| --- | --- |

8.

The Court of Justice is asked whether it is contrary to Article 3 of Directive 93/13 and the case-law of the Court of Justice for a consumer to be regarded under national case-law as being automatically aware that it is normal practice for financial institutions to charge an arrangement fee, and, accordingly, for a lender not to be required to provide any evidence to establish that the clause was individually negotiated, or whether, on the contrary, and in any event, a lender must establish that that clause was individually negotiated.

| 9. | The Court of Justice is asked whether, in the light of Articles 3 and 4 of Directive 93/13 and the case-law of the Court of Justice, it is contrary to that directive for national case-law to establish that
  it is not possible to assess the unfair nature of the ‘arrangement fee’ clause under Article 4(2) since it relates to the definition of the main subject matter of the contract
  , or, on the contrary, whether such an arrangement fee must be regarded as forming not part of the contract price but an ancillary charge, and therefore the national court must be allowed to review its transparency and/or content in order to determine whether it is unfair in accordance with national law. |
| --- | --- |

9.

The Court of Justice is asked whether, in the light of Articles 3 and 4 of Directive 93/13 and the case-law of the Court of Justice, it is contrary to that directive for national case-law to establish that
  it is not possible to assess the unfair nature of the ‘arrangement fee’ clause under Article 4(2) since it relates to the definition of the main subject matter of the contract
  , or, on the contrary, whether such an arrangement fee must be regarded as forming not part of the contract price but an ancillary charge, and therefore the national court must be allowed to review its transparency and/or content in order to determine whether it is unfair in accordance with national law.

| 10. | The Court of Justice is asked whether, in the light of Article 4(2) of Directive 93/13, which was not transposed by [Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación] (2) into the Spanish legal system, it is contrary to Article 8 of Directive 93/13 for a Spanish court to rely upon and apply Article 4(2) of that directive when that provision has not been transposed into Spanish law in accordance with the wishes of the legislature — which sought a comprehensive level of protection in relation to all the terms that a seller or supplier may insert into a consumer contract, including those which relate to the main subject matter of the contract, even if those terms were drafted in plain, intelligible language — if the view is taken that an ‘arrangement fee’ clause constitutes the main subject matter of the loan agreement. |
| --- | --- |

10.

The Court of Justice is asked whether, in the light of Article 4(2) of Directive 93/13, which was not transposed by [Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación] (2) into the Spanish legal system, it is contrary to Article 8 of Directive 93/13 for a Spanish court to rely upon and apply Article 4(2) of that directive when that provision has not been transposed into Spanish law in accordance with the wishes of the legislature — which sought a comprehensive level of protection in relation to all the terms that a seller or supplier may insert into a consumer contract, including those which relate to the main subject matter of the contract, even if those terms were drafted in plain, intelligible language — if the view is taken that an ‘arrangement fee’ clause constitutes the main subject matter of the loan agreement.

| 11. | The Court of Justice is asked whether, in the light of Article 3(1) of Directive 93/13, the ‘arrangement fee’ clause,
  when it has not been individually negotiated and the financial entity has not established that it corresponds to services actually provided and to costs incurred, gives rise to a significant imbalance between the rights and obligations of the parties to the contract
  and must be declared invalid by the national court. |
| --- | --- |

11.

The Court of Justice is asked whether, in the light of Article 3(1) of Directive 93/13, the ‘arrangement fee’ clause,
  when it has not been individually negotiated and the financial entity has not established that it corresponds to services actually provided and to costs incurred, gives rise to a significant imbalance between the rights and obligations of the parties to the contract
  and must be declared invalid by the national court.

| 12. | The Court of Justice is asked whether, in the light of Article 6(1) in conjunction with Article 7(1) of Directive 93/13,
  a costs order against the seller or supplier
  — resulting from proceedings in which a consumer has brought actions for a declaration of invalidity on grounds of unfairness of terms in a contract concluded with him
  and in which the Courts have declared the term invalid on the ground that it is unfair
  — is a necessary consequence of the principle that unfair terms are not binding and the principle of deterring the seller or supplier, where those actions for a declaration of invalidity are upheld by the national court, regardless of whether the repayments ordered by the judgment have actually been made, it being understood, moreover, that the main claim is for a declaration of invalidity of the term and that the repayment of amounts paid is merely an ancillary claim inherent in the former. |
| --- | --- |

12.

The Court of Justice is asked whether, in the light of Article 6(1) in conjunction with Article 7(1) of Directive 93/13,
  a costs order against the seller or supplier
  — resulting from proceedings in which a consumer has brought actions for a declaration of invalidity on grounds of unfairness of terms in a contract concluded with him
  and in which the Courts have declared the term invalid on the ground that it is unfair
  — is a necessary consequence of the principle that unfair terms are not binding and the principle of deterring the seller or supplier, where those actions for a declaration of invalidity are upheld by the national court, regardless of whether the repayments ordered by the judgment have actually been made, it being understood, moreover, that the main claim is for a declaration of invalidity of the term and that the repayment of amounts paid is merely an ancillary claim inherent in the former.

| 13. | The Court of Justice is asked whether, in the light of the principle that unfair terms are not binding and the principle of the deterrent effect of Directive 93/13 (Articles 6(1) and 7(1)), the restitutory effects deriving from a declaration of invalidity on grounds of unfairness of a term in a contract concluded between a consumer and a seller or supplier
  may be limited in time, by the upholding of an objection that the action for repayment of the amount paid is time-barred, even though an action for a declaration that a term is invalid

  ab initio

  on the ground that it is unfair is not subject to any limitation period under national legislation. |
| --- | --- |

13.

The Court of Justice is asked whether, in the light of the principle that unfair terms are not binding and the principle of the deterrent effect of Directive 93/13 (Articles 6(1) and 7(1)), the restitutory effects deriving from a declaration of invalidity on grounds of unfairness of a term in a contract concluded between a consumer and a seller or supplier
  may be limited in time, by the upholding of an objection that the action for repayment of the amount paid is time-barred, even though an action for a declaration that a term is invalid

  ab initio

  on the ground that it is unfair is not subject to any limitation period under national legislation.

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2)  Law 7/1998 of 13 April on general contractual conditions.

---